A LEGAL ODYSSEY
by Julian Heicklen
March 31, 2000
A. HISTORY 1
B. JURY NULLIFICATION 2
C. MARIJUANA TRIALS 4
D. BULLHORN ARRESTS 6
E. WAL-MART ARRESTS 6
F. ELECTION BOARD LAW SUITS 8
A LEGAL ODYSSEY
by Julian Heicklen
March 31, 2000
I have considerable legal experience. In the last two years, I have been arrested 15 times and incarcerated five times. So far I have been involved in 28 court cases. Of these, 14 were criminal cases with me as the defendant. Another 14 of these were civil cases with me as the plaintiff. I have worked with six attorneys, who have tried or are trying thirteen of the cases. I have tried or am trying the other 15 cases myself. In some of these cases, I have used the lawyers as stand-by counsels or advisors. The cases have been, or are being, tried in Centre County magistrate's court (1), the Centre County Court of Common Pleas (14), Pennsylvania Commonwealth Court (1), Pennsylvania Superior Court (4), Pennsylvania Supreme Court (1), U.S. District Court (4), and U. S. Circuit Court of Appeals(3).
Of the criminal cases, I lost the summary offense of sitting in the street. Also I was found guilty on 4 charges of marijuana possession. The marijuana convictions still are on appeal. Three other cases were dismissed by the judge, and three other cases were dropped by the district attorney. Of the civil cases, I have won 2, lost 6, and 6 have not been resolved yet. Before the election in November, I expect to file an additional 7 civil suits.
First let me give you some history. About 4 years ago, I became aware of the enormous prison population in the United States. We are now the number one police state in the world with about 730 persons per 100,000 population incarcerated. The United States has less than 5% of the world's population, but 25% of the world's prisoners
I became involved with many prison groups. I led a class in Talmud for the Jewish prisoners at the local state prison. I became active in the Pennsylvania Prison Society, CentrePeace, The Justice Fellowship, and Project Change of Centre County. None of these organizations was active enough for me. In 1996, I founded a citizens lobby organization called Smart on Crime. The purpose of this organization is to reduce the prison population. We came to the conclusion that the largest group of people that should not be in prison are non-violent drug users. They constitute fully 1/3 of all people being sentenced to prison at the preset time. I contacted many federal and state representatives about decriminalizing drug use. This was futile. Even those legislators that agreed with me in part or whole said that they would not vote to soften drug laws, because they wanted to be reelected.
In 1997, I also organized the Libertarian Party of Centre County. This organization and Smart on Crime decided that the next approach should be to go to the courts and persuade a jury to nullify the law. This is an accepted legal defense. To get into the courts requires being arrested for a crime and having a jury trial. At noon on January 15, 1998, I smoked a marijuana joint in front of 100 people at the main university gate. Much to my surprise, I was not arrested. I repeated this three times at weekly rallies until an arrest was made. I then continued the weekly rallies, but did not smoke. I said that my goal was accomplished, and that I would not smoke again as long as I received a fair, impartial, speedy trial in front of a jury of my peers. Very soon, it became apparent that this was not to be the case. At the 7th rally, I resumed smoking marijuana joints. We have held at least one Marijuana Smoke Out almost every week for over two years. There is a history of the Marijuana Smoke Outs on my home page at http://www.personal.psu.edu/jph13. I have been arrested 15 times, six for smoking marijuana. You are looking at the number one criminal in the United States based on arrest rate. What makes me so dangerous? I own a vegetable.
B. JURY NULLIFICATION
Juries originally were introduced into England to protect the individual from the tyranny of government. The first case in which juries nullified a law was that of William Penn and William Mead in England in 1670 The jurors refused to convict the two Quaker activists charged with unlawful assembly. The judge refused to accept a verdict other than guilty, and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the jurors released, holding that they could not be punished for their verdict.
Jury nullification was introduced into America in 1735 in the trial of John Peter Zenger, Printer of The New York Weekly Journal. Zenger repeatedly attacked Governor William Cosby of New York in his journal. This was a violation of the seditious libel law, which prohibited criticism of the King or his appointed officers. The attacks became sufficient to bring Zenger to trial. He clearly was guilty of breaking the law, which held that true statements could be libelous. However Zenger's lawyer, Andrew Hamilton, addressed himself to the jury, arguing that the court's law was outmoded. Hamilton contended that falsehood was the principal thing that makes a libel. It took the jury only a few minutes to nullify the law and declare Zenger not guilty. Ever since, the truth has been a defense in libel cases.
Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact." In Pennsylvania, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures of 1790, that when "a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." In 1879, the Pennsylvania Supreme Court noted that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights."
John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts." U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided."
In a 1952 decision (Morissette v. United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:
"Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."
In a 1972 decision (U. S. v. Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."
Likewise, the U. S. Supreme Court in Duncan v. Louisiana implicitly endorsed the policies behind nullification when it stated:
"If the defendant preferred the common-sense judgment of the jury to the more tutored but less sympathetic reaction of the single judge, he was to have it."
In recent times, the courts have tried to erode the nullification powers of juries. Particular impetus for this was given by the fact that all-white juries in the southern states refused to convict whites of crimes against blacks. As a result there is a practice of judges to incorrectly instruct the jury that the judge determines the law, and that the jury is limited to determining the facts. Such an instruction defeats the purpose of the jury, which is to protect the defendant from the tyranny of the state. Judges or expert witnesses can determine the facts better than juries can. The purpose of the jury is to protect the defendant from the tyranny of the law.
The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial.
In recent years, jury nullification has played a role in the trials of Mayor Marion Barry of Washington, DC for drug use, Oliver North for his role in the Iran-Contra Affair, and Bernard Goetz for his assault in a New York City subway.
In Les Miserables, Victor Hugo highlighted the difference between justice and law. The jury's responsibility is to deliver justice, not to uphold the law. Judges in Maryland and Indiana are required by law to inform the jury of its right to nullification. Article 23 of the Maryland Bill of Rights states:
"In the trial of all criminal cases, the Jury shall be the judge of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."
Nullification applies just as much in other states, including Pennsylvania. Article I of the Constitution of the Commonwealth of Pennsylvania states in Section 6: "Trial by jury shall be as heretofore (emphasis mine), and the right thereof remain inviolate." Section 25 states: "To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate." Taken together, these two sections mean that juries shall have the powers that they had "Heretofore." i. e. when the Constitution was adopted.
Judges usually do not inform the jury of this right. Even worse, some judges instruct the jury that it does not have the right to interpret or nullify the law, but only to determine the facts. Near the end of alcohol prohibition, juries refused to convict for alcohol violations. The time has arrived for juries to do the same for marijuana violations.
C. MARIJUANA TRIALS
I was tried for the first four marijuana arrests in a combined trial. Our county court is a constitutional disaster. The Vth amendment to the U. S. Constitution requires indictment by a grand jury. At present there are no grand juries in Centre County. Twice I was found to be in contempt of court, because I requested my right to a grand jury indictment.
The VIth Amendment to the U. S. Constitution guarantees the accused to a speedy and public trial. In Centre County, an accused can be held in prison for 6 months before trial. This is not a speedy trial. How would you like to be imprisoned for 6 months and then found to be not guilty? In Centre County, cameras are not permitted in the courtroom, so that a full public trial is impossible.
The VIth Amendment to the U. S. Constitution guarantees an impartial jury. One of the requirements for an impartial jury is a jury pool that is representative of the county population. In Centre County, residents of University Park are systematically excluded from the jury pools. Young adults are grossly underrepresented.
In my trial, Jews were systematically excluded. The trial judge (Charles Brown, Jr.), set the date for trial as September 21, 1998. I notified both him and the Court Administrator that the date was unsuitable, because it was Rosh Hashanah (the Jewish new year), a holy day when Jews are obligated to attend worship services. I was informed that made no difference. The trial would be held on September 21, 1998.
When the jury was selected, the jury pool was notified that the trial date was September 21, 1998, and that everyone that could not attend on that date should excuse themselves. Of course, all of the Jews did so. After the jury was selected, the trial date was changed to October 7, 1998.
The VIth Amendment to the U. S. Constitution also guarantees a defendant the right to have witnesses in his favor. In Centre County the number of witnesses the defense wishes to call is restricted. In my trial, witnesses that I had subpoenaed were not permitted to testify. I was denied the right to have expert witnesses testify on my behalf.
The state's "expert" witnesses are allowed to state that they found some result without presenting any data or even what tests were done or the date on which their tests were performed. There is no evidence presented in court that the state "experts" even performed the tests.
The Centre County judges prohibit the defense from using well-accepted legal defenses of jury nullification, necessity, or justification. It is not appropriate for the judge to tell the defendant how to defend himself or the prosecutor how to prosecute the case. If their arguments are weak or flawed, that is for the jury to decide.
Trials in Centre County are held as if they are timed sporting events. The judge decides how much time each side should have, disregarding the amount of evidence either side wishes to present.
In Centre County, juries decide cases without even knowing the law. Judge Brown never read the law to my jury, even though we requested that he do so. Thus the jury had no basis for knowing if I was guilty or innocent. In fact Judge Brown did not even know what the law was. My defense lawyers had to show it to him in the middle of the trial, but he ignored it.
The reason Judge Brown refused to read the law to the jury is that Pennsylvania Statute 35 P.S. §780102 states that tetrahydrocannibinol (THC) is not a constituent of marijuana. The state based its case that I possessed marijuana on a positive identification for THC. I was found guilty for all four arrests.
The law defining marijuana is 35 P.S. §780102. It states:
"Marihuana" consists of all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin; but shall not include tetrahydrocannabinols, the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake, or the sterilized seed of such plant which is incapable of germination."
We have appealed the case on the grounds that the judge did not read the law to the jury. The Superior Court remanded the case to the trial court for presentation of an opinion why the jury was not read the definition of marijuana. The trial judge's substantive response was:
1. "The subject instruction was not included with the written proposed instructions Appellant submitted to this Court. This Court granted all but one."
2. "Appellant, with the assistance of two attorneys during the trial, failed to make an issue sufficient to warrant this Court instructing the jury on the legal definition of marihuana."
3. "Moreover, the definition proffered by Appellant would have confused the jury in light of Appellant's failure to either raise or argue the issue. Given the nature of the trial, the instruction was refused so the jury would clearly know the issues to be resolved."
4. "Even if Appellant raised the issue of THC or the chemical composition of marihuana, it was not necessary to instruct the jury on the legal definition of marihuana. The jury could render a decision based on the other instructions given."
5. "Appellant merely desired this Court to give a gratuitous instruction on the legal definition of marihuana."
I was arrested two other times for possession of marijuana. In one of these instances, I was smoking in front of the County Courthouse in Bellefonte, PA. I was placed in prison for 4 days in lieu of $10,000 bail. After 4 days, the bail was reduced to zero, and I was released on my own recognizance. Ultimately, the District Attorney dropped the charges. I have filed lawsuits in Centre County Court against the Bellefonte police and borough for false arrest, since the arrests were based on a positive screening test for THC. THC is a legal pharmaceutical drug sold under the trade name Marinol. I also have filed a lawsuit against the district magistrate and Centre County for damages for excessive bail.
In the other instance, I was arrested by Penn State police for smoking a marijuana cigarette in front of the university main gate during the Central Pennsylvania Festival of the Arts in July 1998. I was placed in prison for 4 days in lieu of $50,000 bail. After 4 days, the bail was reduced to zero, and I was released on my own recognizance. The purpose of the excessive bail was to keep me in prison until the arts festival was over. Ultimately, the District Attorney dropped the charges.
D. BULLHORN ARRESTS
On December 17, 1998, State College police arrested Charlie Miller for using a bullhorn in our demonstration in University Park. However they failed to appear at his hearing. District Magistrate Carmine Prestia dismissed the charge without hearing the case.
At the weekly Marijuana Smoke Out on Thursday, February 11, 1999, Julian Heicklen and Diane Fornbacher were arrested for using a bullhorn.
Heicklen and Fornbacher were using the bullhorn in University Park. The arrest of Heicklen was made by State College police operating outside its jurisdiction. Bullhorns are used often in University Park, the most recent instance having been on February 26, 1999, by the Undergraduate Student Government. The U. S. Supreme Court has ruled over and over again that municipal anti-bullhorn ordinances are a violation of the First Amendment right to free speech and are unconstitutional. Nevertheless, Fornbacher and Heicklen were bound over for trial on March 3, 1999.
We filed a writ of habeas corpus. As a result, Judge Thomas Kistler declared the State College municipal ordinance pertaining to the prohibition of bullhorns to be unconstitutional, and he dismissed the charges and the case against us. In his ruling Judge Kistler stated:
"The prohibition against the use of sound amplification devices found in Section 103 (b)(2) is an absolute prohibition of such devices and does not contain reasonable manner, place, or time regulations. Presumably, the use of amplification devices is prohibited even if a person uses such devices to emit sounds on a mere "whisper" level. Such an absolute prohibition is an impermissible restraint on free speech and is not a reasonable regulation according to Guess, supra, and Saia, supra. Consequently, this Court holds the Borough of State College Noise Ordinance, Section 103(b)(2), is unconstitutional on it face. The Borough may regulate the use of amplifying devices within the municipality, but it must do so by narrowly tailoring the time, place, and manner regulations."
On February 22, 2000, we filed a civil suit in federal district court against the State College Borough, its police, and one campus police officer
We also filed for an injunction in federal court to prohibit the police from interfering with our right to use the bullhorn. In District Court, Judge Muir refused to grant an injunction on the grounds that a criminal case was in progress. The Circuit Court of Appeals upheld his decision. Shortly thereafter, Judge Kistler declared the bullhorn statute unconstitutional, and the issue became moot.
E. WAL-MART ARRESTS
Julian Heicklen was arrested at 1:29 PM on Friday, March 12, 1999, and at 3:00 PM on Saturday, March 13, 1999, for passing out campaign flyers on the sidewalk in front of Wal-Mart on the Benner Pike in State College, PA. Heicklen was a candidate for county commissioner in Centre County.
Heicklen introduced himself to passersby, said that he was a candidate for county commissioner, and asked for their vote. He extended a flyer that some customers ignored and other customers accepted.
Wal-Mart employees approached Heicklen and asked him to stop distributing his literature. Heicklen refused. He was given permission to stay as long as there were no customer complaints. About fifteen minutes later, the Wal-Mart employees said that there were complaints and that I would have to stop distributing literature. I refused to do so. The State College police were called. They asked Heicklen to leave. Again Heicklen refused. Heicklen was placed under arrest. He fell to the ground and was carried into a patrol car and driven to State College Police Headquarters, where he was placed in the holding cell.
After the officers completed preparing the respective complaints, Heicklen was carried to the patrol car, and driven to the office of a District Magistrate. On March 12, 1999, District Magistrate Bradley Lunsford charged him with criminal trespass and released him on his own recognizance. On March 13, 1999, District Magistrate Dan Hoffman charged him with criminal trespass and disorderly conduct. He was incarcerated in Centre County Prison in lieu of $75,000 bail. Four days later, at his preliminary hearing, District Magistrate Ron Horner bound him over for trial and released him on $20,000 bail.
Wal-Mart solicitation policy prohibits solicitation and/or distribution of literature by non-associates (non-employees) at all times in any area of the store. We filed a writ of habeas corpus. As a result, Judge Thomas Kistler issued the following CONCLUSIONS OF LAW:
"1. A person commits the offense of defiant trespasser if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by actual communication to the actor 18 pa. C. S. A. §3503(b)(1)(i)."
"2. It is a defense to prosecution for defiant trespasser under this section that the premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises 18 Pa. C.S.A. §3503 (c)(2)."
"3. This statutory defense [18 Pa. CS.A. §325303 (sic.should be 3503) (c) (2)] merely requires that the defendant be in a place open to the public and that he comply with all lawful conditions imposed on access to or remaining on the premises. Commonwealth v. White, 342 Pa. Super. 1, 92 A.2d 32 (1985)."
"4. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty Pennsylvania Constitution, Article 1, §7."
"5. A private institution cannot exercise its right of property by invoking a standardless permit requirement in such a manner as to prevent defendants from presenting their point of view by distributing leaflets outside such a building in an area normally open to the public. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981)."
"6. Any condition or restriction imposed must be both reasonable and nondiscriminatory and may not be based simply upon an undifferentiated fear or apprehension of disturbance. Id., 432 A.2d at 1390, 1392."
"7. [T]he Pennsylvania Constitution does not guarantee access to private property for the exercise of such rights where the owner uniformly and effectively prohibits all political activities and similarly precludes the use of its property as a forum for discussion of matters of public controversy. Western Pennsylvania Socialist Workers v. Conn. Gen. Life, 512 Pa. 23, 26, 515 A.2d 1331, 1333 (1986) (citations omitted)."
Judge Kistler dismissed the charges and the case against Heicklen based on the preceding CONCLUSIONS OF LAW. However the county refused to return the $20,000 bail money. I had to file for another hearing to get Judge Kistler to order the county to return the bail money.
I also filed for an injunction in Federal District Court to prohibit Wal-Mart from interfering with my right to pass out literature. Judge Malcolm Muir refused to grant an injunction based on the argument:
"Federal law is settled that there is no duty of a private landowner to permit the distribution of handbills or permit a political speech on its property. Lloyd, 407 U. S. at 56970. We cannot discern any basis for concluding that any of the defendants acted under color of state law or engaged in state action which would subject them to liability under § 1983. Defendants' motion to dismiss the complaint will be granted."
I have filed an appeal in the U. S. Circuit Court of Appeals for the Third Circuit for injunctive and declaratory relief. The case is scheduled to be heard on April 25, 2000.
F. ELECTION BOARD LAW SUITS
The Libertarian Party ran candidates in the Centre County elections of 1999. The Board of Elections refused to allow watchers from the party or the candidates to observe the vote count. Two law suits were filed against the County Board of Elections. Judge Kistler ordered the Board of Elections to allow watchers at both the unofficial and official vote counts. In the second lawsuit, he laid down the conditions for watching. Watchers from both the Libertarian and Democratic Party were present for the unofficial vote count. Only I appeared as a watcher at the official vote count, which lasted three days.
On election day, November 2, 1999, a poll watcher for the Libertarian Party was refused permission to poll watch in Milesburg, PA. The Libertarian Party filed suit for $5000 retribution against the Centre County Board of Elections. The Board's attorney argued that there is no provision in the law for civil damages. On February 22, 2000, Judge Thomas Kistler agreed and dismissed the suit.
In his order, Judge Kistler stated: "Plaintiff is instructed to follow the provisions of the Pennsylvania election code for seeking relief of any wrongs deemed to have occurred." Judge Kistler pointed out that the law provides provision for a criminal suit. The poll watcher can file a criminal complaint against the Board of Election's Judge at the Milesburg polling place. If the District Attorney prosecutes, and the election judge is convicted, the election judge can be sentenced to up to two years in prison and $1000 fine. The fine money goes to the county (the party responsible for the offense). The poll watcher and the Libertarian Party (the injured parties) will receive nothing.
One candidate of the Libertarian Party of Centre County polled more than 5% of the county vote in the election of November 2, 1999. This qualifies the Libertarian Party of Centre County as a minor political party. The Libertarian Party of Centre County requested nominating papers for the primary election of April 4, 2000, from the Pennsylvania Board of Elections. The Board refused to provide the papers.
The Libertarian Party of Centre County sued the Pennsylvania Board of Election to hold a primary. On March 10, 2000, a hearing was held in Commonwealth Court in front of Judge Warren Morgan. Later that day Judge Morgan issued the opinion: "Therefore the effect of section 912.2 is to repeal those provisions of section 801(b) that would have allowed the Libertarian Party of Centre County to field candidates in the primary election of April 4, 2000."
The Libertarian Party of Centre County accepts Judge Morgan's opinion that the names of specific candidates cannot appear on the ballots of minor political parties. However, it does not follow logically that minor political parties cannot hold primaries without listing candidates' names. The nominees of minor political parties can be chosen from the results of write-in ballots. Judge Morgan never ruled on the issue of holding such primary elections.
Two provisions of the act [25 P.S. §2831(b) and 25 P.S. §2911(a)] specifically state that minor political parties may hold primary elections. Nowhere is it stated that minor political parties cannot hold primary elections.
On March 17, 2000, the Libertarian Party of Centre County filed an appeal to the Pennsylvania Supreme Court.